Acquitted Export Defendant Seeks Legal Fees from USG

An interesting article in yesterday’s edition of The Birmingham News provides some further details on the unsuccessful prosecution of an Iranian-American defense contractor in Huntsville that was the subject of a previous post on this blog. As we noted in that post, the prosecution’s case collapsed when it was revealed that one of the prosecution’s chief witnesses had pleaded guilty to forging checks from the company that she was now accusing of export violations.

But that’s not all that sank the prosecution. According to article in The Birmingham News, the drawing of the Black Hawk that had been sent to China was apparently available on the Internet:

The Black Hawk drawing Alex Latifi was accused of sending to China also backfired on the government. A prosecution witness conceded that it wasn’t marked with customary warnings barring it from being sent to trading partners subject to arms control laws. And the argument by Latifi’s lawyers that the Black Hawk plans were in the public domain, which would exempt them from certain arms-control provisions, dogged the prosecution.

“Hang on, I have not heard about that before,” trial judge Johnson said as Alex Latifi lawyer James Barger cross-examined a government witness on the trial’s fifth day. “These drawings are on the Internet?”

We’ll have to take this claim at face value, although I have to say that I couldn’t find detailed schematics of the Black Hawk on the Internet. I found some indication, however, that Sikorsky may once have made certain schematics available that way, but these have since disappeared from the Sikorsky website (WARNING: annoying audio at link). But if those documents were public domain as alleged, it is hard to say why the prosecution filed the case.

The defense lawyers, however, are keeping the government’s feet to the fire even after the acquittal by filing a motion under the Hyde Amendment (18 U.S.C. § 3006A Note).

[The] lead lawyer, Henry Frohsin of Birmingham’s Baker, Donelson, Bearman, Caldwell & Berkowitz, has filed a claim for compensation from the government called a Hyde motion. It’s based on a 1997 law that allows acquitted federal criminal defendants to argue the Justice Department engaged in wrongful prosecution and collect whatever money they spent on their legal defense. …

Frohsin said … “If this doesn’t qualify as a vexatious, misguided prosecution, then nothing will.”

(As full disclosure, I was interviewed by the Birmingham News reporter and am quoted in the article.)

2 Comments:

1. THE DRAWING WAS NOT MARKED “EXPORT RESTRICTION” ARMS EXPORT CONTROL ACT (TITLE 22,U.S.C. SEC 2751,ET SEQ.) OR EXPORT ADMINISTRATION ACT OF 1979, AS AMENDED,TITLE 50, U.S.C., APP. 2401 ET. SEQ.
WHICH IS REQUIRED BY LAW TO BE MARKED CLEARLY TO MAKE THE DRAWING RESTRICTED.
2. THE DRAWING IS STILL NOT RESTRICTED AND CAN NOT BE RESTRICTED SINCE SIRKORSKY AIRCRAFT HAS ALREADY PROVIDED THESE TO CHINA WHEN THEY SOLD THE BLACK HAWK HELICOPTORS TO THEM.
3. THE DRAWING IS CLEARLY MARKED (THESE DRAWINGS CONTAIN NO CRITICAL CHARACTERISTICS)
4. HOPKINS CALLED SIRKORSKY DOCUMENTATION OFFICE AND REQUESTED PERMISSION TO DRAW THE DRAWING AND ASKED IF THERE IS ANY RESTRICTION TO DRAW THE DRAWING AND WAS TOLD THERE WAS NO RESTRICTION.
5. THIS PROSECUTION WAS VEXACIOUS AND UNLAWFUL AND COMPLETELY WAS BASED ON MY HUSBAND’S BECAUSE WAS BORN IN IRAN.

1. No such marking is required by law for a drawing to be export-controlled under the ITAR or the EAR.

2. Prior exports of technical data do not make subsequent exports exempt from licensing requirements.

3. Whether the drawing is clearly marked or contains “critical characteristics” is not relevant to whether it was export controlled or not.

4. If Sikorsky said the drawing was not ITAR-controlled, that could be evidence that there was a lack of criminal intent.

5. If the prosecution was vexatious, then Mr. Latifi should prevail on his Hyde Amendment motion and have his attorneys’ fees reimbursed.

Although I disagree with Ms. Latifi’s interpretation of ITAR requirements in her comments, it seems to me that there is a good case that the drawing was public domain under section 120.11 and therefore not export restricted, but this is for reasons other than the ones articulated by Ms. Latifi.